Carvalho Sbeghen (Migration)

[2021] AATA 3542

Carvalho Sbeghen (Migration) [2021] AATA 3542 (19 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Beatriz Carvalho Sbeghen

CASE NUMBER:  2100338

HOME AFFAIRS REFERENCE(S):          BCC2020/1723748

MEMBER:Noelle Hossen

DATE:19 August 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

Statement made on 19 August 2021 at 2:26pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482– applicant has not complied with subclause (5) of condition 8607 – applicant ceased employment – applicant has had ample time to find a new sponsor – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 116, 140

CASES
Wan v MIMA (2001) 107 FCR 133

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 January 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant has not complied with subclause (5) of condition 8607 attached to her visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on the 19 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Elodie Lucie Rodde and Jordan Peppin.

4. The applicant was born in Brazil on the 4 March 1994. She said that she had travelled to Italy for a period of 6 months previously and she holds dual citizenship(Brazil and Italy) because her grandfather was an Italian citizen.

5. She is presently 27 years of age and has lived in Australia for the last 4 years. She initially came on a working holiday but was able to obtain fulltime employment which led to the grant of a sponsorship by her employer for the visa the subject of this review.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1) (b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(b) - non-compliance with conditions

8. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8607 attached to the applicant’s visa. This condition requires that if the holder of the visa ceases employment that the period must not exceed 60 days.

9. The applicant had a standard business sponsor and was nominated by Insight Network Australia Pty Ltd (the sponsor) whose nomination was approved by the  Department on the 5 June 2019.The sponsor had advised the Department that the applicant had ceased employment with them on the 29 May 2020.

10. At the time that the Department considered the matter on the 6 January 2021 the applicant was not in employment. The Delegate stated in his Decision as follows: “ The sponsor has advised the Department that the visa holder ceased employment effective 29 May 2020.This appears to indicate that the visa holder has not complied with condition 8607(5) because the period during which she ceased employment has exceeded 60 consecutive days. Based on this information, there appear to be grounds for cancelling the visa under s116 (1) (b) of the Act because it appears the visa holder has not complied with condition 8607.”

11. The visa had been granted on the 12 June 2019 and was due to expire on the 12 June 2021.

12. At the time of the review application hearing the applicant did not have employment with a nominated sponsor, or an Application pending or approved with the Department for a Temporary Skills shortage or agreement nomination in relation to another sponsor. The applicant did state in her evidence that she had tried to find employment and had recently obtained employment with another company in a similar field in Sydney but approximately 2 weeks ago she was told that the work was unavailable due to the lockdown.  She is presently unemployed. She said that the company had stated that if things get better that they would employ her again.

13. The Department had sent a Notice of Intention to consider Cancellation (NOICC) to the applicant on the 10 December 2020.In response to the NOICC the applicant stated that as follows:” I found myself in a very toxic work environment. After working there for one year and six months, I decided to terminate my employment, since the toxicity of the company was affecting my mental health.”

14. The delegate’s Decision states as follows: “I consider that the visa holder has not provided any specific information nor evidence to support her mental health issues. Without further corroborating evidence such as a medical Certificate from her treating doctor, I do not consider this is a factor which mitigates the grounds for cancellation. At the time of the Decision there is no record on Departmental systems to indicate the visa holder has a new Temporary Skills shortage or Labour agreement nomination application approved in relation to any other sponsor.

15. The applicant was provided with a hearing invitation on the 3 August 2021 by the Tribunal. The hearing invitation requested that the applicant attach additional information and any new information. The applicant did respond but did not provide any additional information, documents or submissions to the Tribunal.

16. At the hearing the Tribunal heard oral evidence from Jordan Peppin and Elodie Rodde who both stated that the workplace had a toxic culture. Jordan stated that she had worked there for 6 months and that she was made redundant while the applicant left her employment. She confirmed that she worked closely with the applicant and that the management made fun of the applicant and bullied her. She said it was a difficult place to work and that several personnel felt uncomfortable.  The staff turnover was high, and she could testify to that fact as she worked in finance.

17. The evidence of Elodie was similar although as it was more general in the sense that she said that the staff were not treated well. She said that the management were dismissive and disrespectful to their employees. She was not 100 % sure as to why the applicant left her employment. She was herself made redundant a week after the applicant left.

18. The Tribunal does not have any evidence regarding the mental health of the applicant after she terminated her employment or any other evidence that could mitigate her position. The applicant did not provide any evidence to the Tribunal about her mental health before and after the termination of her employment. If the applicant did suffer from a mental health condition, she had enough time to present such evidence to the Tribunal. The Tribunal did not see any medical evidence from the applicant relating to mental health conditions or any other illness.

19. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1) (b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

20. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers.

    the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia:

21. The applicant was granted a Temporary Skills Shortage visa for the purpose of undertaking employment in the nominated occupation Copy writer with an approved sponsor Insight Network Australia Pty Ltd.

22. The Tribunal does empathise with the applicant’s position as she clearly ceased her employment due to the toxic culture of her work conditions. The Tribunal accepts the evidence of her work colleagues.

23. She had advised the Department that she intended to find employment and a new sponsor. The applicant did face a difficult task as the COVID 19 pandemic has made it a difficult marketplace to find employment.

24. The applicant has stated in her evidence at the hearing that she had tried and was hopeful that she could find employment but at the date of the hearing did not have any employment.

25. The Tribunal does accept that the situation is and was out of her control. The Tribunal does place a little weight on those factors in favour of not cancelling the visa.

    the extent of compliance with visa conditions:

26. The evidence is that the applicant was has been unable to comply with the conditions of her visa since she terminated her employment with the sponsor in May 2020.

27. There is no evidence to suggest that the applicant has been non-compliant in any other conditions, however the fact remains that she has been non-compliant for over a year. She had 60 days to remedy the compliance after ceasing employment as her visa was subject to Condition 8607 (5).she did not do so and at the date of the hearing on the 19 august 2021 the applicant had not secured employment with another sponsor or have a pending nomination before the Department.

28. The Tribunal places significant weight against the applicant ‘s case as a result of the noncompliance.

    degree of hardship that may be caused (financial, psychological, emotional or other hardship):

29. The applicant stated in her oral evidence that she will face hardship if she is required to return to Brazil as she has spent 4 years in Australia and was not ready to go back to back to her home country. She said that she can return to live with her family. She said that she would have to deplete her savings if she must go back. She had some savings but would have to dip into her savings to purchase a plane ticket.

30. In any event it is unlikely that she can return to her home country due to the travel restrictions caused by the pandemic. The Delegate has set out in the Decision the plans that the Government has made for visa holders that find themselves in Australia during the pandemic.

31. The Tribunal accepts that the applicant will suffer some financial and emotional hardship.

32. She did state that her mother was a Judge in Brazil and she can return to live with her family if worse comes to worse.

33. She did fear for her physical health due to the extent of the pandemic in Brazil and the lack of availability of the vaccines.

34. The Tribunal does accept that she will suffer some hardship if the visa is cancelled and weighs that in favour of not cancelling the visa.

    circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control:

35. The Tribunal accepts that the circumstances were beyond her control at the time that she terminated her employment. However, the applicant has had ample time to find a new sponsor. The applicant was aware that she needed to abide by the conditions of her visa during her stay in Australia.

36. The Tribunal gives some weight to these factors in favour of not cancelling the visa.

    past and present behaviour of the visa holder towards the department:

37. There is no information that the applicant has been uncooperative with the Department and therefore the Tribunal gives this consideration a little weight in favour of not cancelling the visa.

    whether there would be consequential cancellations under s.140:

38. It is unlikely that thee are going to be consequential cancellations for a visa of another person. The Tribunal is unable to assign any weight to this factor.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention:

39. The applicant may be eligible to apply for a Bridging Visa E until such time that she is able to return to Brazil due to the restrictions on travel outside of Australia now due to the pandemic. She may be affected by Section 48 of the Act, which would cause her to have limited options if applying for further visas in Australia in the future.

40. The applicant may become an unlawful non-citizen if she does not voluntarily leave Australia but that depends on whether the restrictions on travel have been lifted by the Australian Government and she is able to freely travel to Brazil soon.

41. The Tribunal does place some weight on those factors in favour of not cancelling the visa.

    whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].):

42. There is no information before the Tribunal to indicate that Australia’s international obligations will be engaged. The Tribunal does not place any weight on those factors.

43. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

44. The Tribunal affirms the decision to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

    Noelle Hossen
    Member